Motion to Vacate Order
Appearances required. Appearances: The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference. Meeting ID: 161 956 1423 Passcode: 137305
Tentative Ruling: Matter of The Howard Ibsen 2018 Trust Tentative Ruling: Matter of The Howard Ibsen 2018 Trust Case Number
Case Type Trust Hearing Date / Time Wed, 06/17/2026 - 09:30 Nature of Proceedings Motion to Vacate Order Tentative Ruling Probate Notes: Appearances required. The following is noted for the parties and Court at the hearing: On September 29, 2025, this Court ordered the parties in this case to judicial reference, with an order requiring the referee to do the following: Determine the length and extent of any accounting necessary to trace the funds subject to the estate planning instruments at issue in this case.
Order the production of an accounting, if necessary, and resolve any objections to that accounting. Resolve all current discovery disputes, and bring discovery to a close. Make a recommendation to the court as to whether the settlor executed any estate planning documents at issue in this case while lacking capacity, or while under undue influence. Make a recommendation to the Court as to rulings on all of the above matters.
Erin Biddle, as special administrator of the Estate of Judith Jackson (thus, standing in the shoes of Judith Jackson), now motions the court to vacate its order for reference on the grounds that the Estate of Ms. Jackson is insolvent, and the reference would substantially hinder this litigation by placing an undue financial burden on the Estate of Judith Jackson.
Current California law does not support the grant of the motion, because the determination of the ability to pay was already performed by the court in the hearings leading up to the order for reference, and no party is in forma pauperis. Code of Civil Procedure section 639(d)(6)(A) plainly states that courts "shall not appoint a referee at a cost to the parties" unless the court finds either that no party has established economic inability to pay or that another party has voluntarily agreed to pay the additional share. That section further requires that parties proceeding in forma pauperis "shall be deemed by the court to have an economic inability to pay the referee's fees."
However, it is notable that none of the sections governing the appointment of a judicial reference in Chapter 6 of Title 8 of the CCP (Sec.Sec.638-645.2) expressly authorize this motion procedurally, and notably the inability of Ms. Jackson, or her estate, to pay was not raised in the hearings leading up to the Court's order at issue. In fact, Petitioner/movant submitted evidence on file with the Court showing the issue of the parties' ability to pay was addressed, and movant's counsel admitted that both parties have the ability to pay. (Mot. at exh.3, pg. 3, lns. 23-24, dig. pg. 34.).
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Thus, the Court must consider whether the motion is procedurally proper under any other statute. As pointed out by the opposition, the practical procedural relief this motion seeks is for the Court to reconsider its prior order based on new facts or evidence. Procedurally, Motions for Reconsideration are governed by CCP section 1008, which places a hard 10-day time limitation for filing the motion upon the discovery of the new facts. This motion was filed months past that date.
The only other procedural avenue this motion could travel down is a motion to set aside the Court's reference order pursuant to CCP section 473. There are two types of relief from defaults and default judgments available under California Code of Civil Procedure, section 473(b): 1) mandatory relief and 2) discretionary relief.
Mandatory relief requires the movant to meet three elements: Judges must vacate dismissals, default entries, and default judgments whenever (1) an application is made no more than six months after entry of judgment, (2) the application is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, and (3) the attorney's mistake, inadvertence, surprise or neglect in fact caused the dismissal or entry of default. (Benedict v. Danner Press (2001) 87 Cal.App.4th 923, 927 (citing CCP Sec.473(b)).
Accord, Wagner v. Wagner (2008) 162 Cal.App.4th 249, 258.) The motion cannot be granted under the mandatory relief, because any mistake in the value of the estate would have had to been made by the attorney, and the mistake, despite the sworn declaration of movant's attorney, appears to be on the part of the special administrator, not the attorney. Even if the attorney for the movant did make that mistake, it is arguably past the six-month deadline.
As for discretionary relief, the court "may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect." (CCP Sec. 473(b).) This provision of section 473(b) "applies to any judgment, dismissal, order, or other proceeding," and "does not limit the application of the discretionary relief provision to involuntary judgments or dismissals."
Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 254. "It is clearly established that a motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse." Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266 (internal citations omitted). "In order to qualify for [discretionary] relief under section 473, the moving party must act diligently in seeking relief and must submit affidavits or testimony demonstrating a reasonable cause for the default." (Huh v.
Wang (2007) 158 Cal.App.4th 1406, 1419 (citing Elston v. City of Turlock (1985) 38 Cal.3d 227, 234.) "In other words, the court's discretion may be exercised only after the party seeking relief has shown that there is a proper ground for relief, and that the party has raised that ground in a procedurally proper manner, within any applicable time limits." (Ibid. [internal citations omitted].) "It is clearly established that a motion for relief under section 473 is addressed to the sound discretion of the trial court and an appellate court will not interfere unless there is a clear showing of an abuse." (Burnete v.
La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1266 [internal citations omitted].)
While the discretion of the trial court is broad enough to grant the motion in this case, the Court should not exercise that discretion due to the fundamental lack of expediency in bringing the motion, and in the parties' failure to move this case forward to trial. This case is now three years old, and does not appear to be any closer to trial than it was when the judicial reference order was issued. Therefore, the motion should be denied.
Appearances: The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference. Meeting ID: 161 956 1423 Passcode: 137305